Mimesis Law
21 October 2019

Drug Pardons: One Teeny, Tiny Step Forward

Jan. 6, 2016 (Mimesis Law) — A few weeks ago, President Obama decided to dust off the commutation and pardon powers he’d overlooked for most of his presidency and finally exercise them:

President Obama ended a tumultuous year in the nation’s capital by commuting the sentences of 95 federal prisoners and granting two pardons on Friday, building on his push to reorient the nation’s criminal justice system with a holiday season stroke of his pen.

The set of commutations was the largest of Mr. Obama’s presidency, and it more than doubled the number he has granted since taking office. Most of those who will be freed are nonviolent drug offenders given long sentences during an earlier crackdown on crime. Forty of them will be spared life terms.

The idea that helping less than one hundred nonviolent drug offenders somehow serves to build on his “push to reorient the nation’s criminal justice system” is laughable. The Federal Bureau of Prisons alone houses just shy of two hundred thousand inmates, after all. Had Obama commuted as many sentences every December since he took office as he did this past December, he would’ve helped less than half of one percent of the federal prison population.

To say that what he did builds on anything is absurd. Considering that, at the time of the commutations and pardons, California alone had over half as many inmates as the feds and tiny little Arizona had just shy of a quarter, those tiny commutation and pardon numbers are even more embarrassing considering it’s the whole nation’s system he’s supposedly trying to fix.

What I take away from it is that the threshold for calling something a push to reorient must be miniscule. Sure, what Obama did will make a big difference for some cherry-picked, sympathetic inmates who have probably long since paid their dues, but if it’s really part of a grand plan to fix the justice system, it would seem nobody has thought very hard about any of this at all. Should the personal selecting of a few special injustices by a single politician, voted into office to mostly do a very different job, really be a part of a plan to ensure that our justice system is, in fact, just? As bad as things may be, I can’t help but think we have to be able to do better than just having a person with a bunch of power and way too much other stuff to do serve as our safety valve.

In a perfect world, the system would be fair enough so that one hundred commutations and pardons would seem like a big deal. However, even with my sleepy little practice, I can think of far more than one hundred defendants who got a raw enough deal for me to find the result offensive. Sadly, though, we have a system where people getting cruel punishments is anything but unusual.

Obama, no doubt, had a tremendous number of injustices to review, and the people he chose to pardon seem quite deserving. The Boston Globe discusses one of them:

Carlos Lopez had a newborn and a toddler at home in Lawrence when he was arrested in 2001 on crack cocaine and firearms charges that sent him to federal prison for 25 years.

But by spring, Lopez and his two daughters, now 14 and 17, will be reunited after he received a commutation Friday from President Obama. The former Lawrence resident, was among 95 offenders who received reduced prison terms in Obama’s latest round of commutations and pardons.

In Lopez’s case, even the sentencing judge thought that 25 years was too much time:

At the time of Lopez’s sentencing, Green said US District Court Judge Steven J. McAuliffe was required to impose mandatory minimum prison terms for the crack cocaine offenses. In implementing the penalty, however, McAuliffe said he believed the punishment was too harsh and wrote a letter to that effect when Lopez petitioned for a commutation in 2014, Green said.

“The judge that sat through Mr. Lopez’s trial and sentenced him felt the sentence was excessive at the time,” she said. “He felt that there should be a sentencing reduction available for someone that was young and immature.”

Lopez did not have a serious criminal background and the offense involved a “low-level drug sale,” Green said. The US attorney’s office in New Hampshire, which prosecuted Lopez, did not respond to e-mails seeking comment Saturday.

If he was sentenced for the same crimes today, Green said Lopez would face 11½ to 12½ years in prison, with no mandatory minimum punishment for the crack cocaine offenses. By the time Lopez is released in April, he will have spent more than 14 years in prison.

Lopez could be the poster child for someone who deserves a break. He had no serious criminal background and it was a low level drug sale. He had little kids at home. Add to that the fact the sentencing judge didn’t just say the punishment was too harsh, but even cared enough to write a letter to that effect over a decade later, and it should become apparent that we should not be feeling gratitude for what Obama did, but feeling anger that our justice system is so harsh and inadequate in addressing its mistakes that it took a presidential commutation to makes things even close to right.

Some of the other recipients of commutations may be even more deserving. Take William Ervin Dekle, for instance:

Dekle was convicted in the early 1990s and sentenced to life in federal prison on charges of conspiracy to import 1,000 kilograms or more of marijuana; conspiracy to possess with intent to distribute 1,000 kilograms or more of marijuana; importation of 100 kilograms of marijuana (four counts); possession with intent to distribute 100 kilograms of marijuana (four counts).

I can’t help but agree with his sentiments:

“I have served decades for a substance that is now largely legal.  I have seen murderers and other violent criminals released, yet I have no chance of ever leaving prison, save for Presidential clemency. That just doesn’t seem right.  I am a hard worker and have over 200 months of programming with the Federal Prison Industry as a production clerk.”

What happened to Alton Mills isn’t much better:

A Chicago man serving a life sentence for his role as a low-level courier in a federal drug case will be released by next Christmas, one of 95 federal inmates to have their sentences commuted Friday by President Barack Obama.

Alton Mills spent 22 years in federal prison, and his life sentence was more than the drug suppliers and dealers convicted with him in a 1994 drug conspiracy case. Mills had two prior convictions for drug possession — crimes so minor he was sentenced to probation in those cases. But when he was found guilty in the federal case in 1994, that conviction was considered a “third strike” that made him eligible for a mandatory life sentence.

At his sentencing hearing, U.S. District Judge Marvin Aspen bemoaned the federal statutes that tied his hands on the harsh sentences to be meted out to Mills and his six co-defendants. Aspen called the life sentence a “farcical” punishment.

The common thread in all of this, something also relevant to the current situation in Oregon where people occupied a federal building in at least partial protest of the self-surrender of ranchers who were given a break by a federal judge who felt their mandatory minimum punishment was cruel and unusual but was overturned and the ranchers ordered to self-surrender, is the disastrous impact of mandatory minimums. They add legitimacy to unjust results. Judges who disregard them are often overturned, as in Oregon. Those who follow them and don’t want to get overturned are stuck making angry-sounding comments at sentencing as they participate in the madness. At best, they help the defendant later throw a Hail Mary pass to a president who may care too little too late, or not at all.

I appreciate what Obama did, but I wish he’d done it sooner. Better yet, I wish that he didn’t have to do it at all.

2 Comments on this post.

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  • New Mimesis Blog Posts | Tempe Criminal Defense
    8 January 2016 at 7:24 pm - Reply

    […] Thanks, Obama! […]

  • Tharon
    10 January 2016 at 3:46 pm - Reply

    Matt you make some very good points but no suggestions. How would you undue the wrongs of yesterday? I know you have an idea of how you would handle it. Please share it with us?